Alex Makau & 343 others v St Mary’s Mission Hospital Limited & another [2020] KEELRC 1413 (KLR)
The bottom line
#A Kenyan court ruled that hospital employees unfairly dismissed during a hostile ownership takeover deserve compensation, even though reinstatement was refused.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimants were unfairly terminated
Yes - the claimants lost their jobs as a direct consequence of the respondents' violent takeover and disobedience of court orders preserving employment, and dismissals flouted Sections 41, 43 and 45 of the Employment Act
The court found the violent manner of takeover caused the loss of employment. Despite orders of 4th January 2018 preserving employment, respondents dismissed employees without disciplinary process as required by Sections 41, 43 and 45 of the Employment Act. Employees were blameless victims of leadership wrangles between founder members.
Whether reinstatement was an appropriate remedy
No - reinstatement requires exceptional circumstances which were not established, given the large numbers involved and changed circumstances
Section 49(4) permits reinstatement only in very exceptional cases. Here many employees had moved on, some were re-employed, some withdrew from the suit, and the hospitals had recruited new staff, making blanket reinstatement impractical.
Whether employees who absconded or were dismissed after the takeover were to blame
No - the panic, confusion and vandalism resulted from the violent takeover, and criminal acts could not be blamed on all employees indiscriminately
The Medical Director testified that a security committee briefing caused panic and a breakdown of law and order. The court held the situation was caused by the violent takeover and that vandalism, though criminal, could not be attributed indiscriminately to all employees.
Legal principles established
#- Dismissal without adherence to Sections 41, 43 and 45 of the Employment Act (disciplinary process) constitutes unfair termination
- Reinstatement under Section 49(4) of the Employment Act is discretionary and must be granted only in very exceptional cases
Court orders
#- 1.Each claimant awarded salary for January 2018
- 2.Each claimant awarded one month's salary in lieu of notice
- 3.Each claimant awarded 6 months' salary as compensation for unfair termination
- 4.All employees who were dismissed to be paid per the award as the dismissal did not comply with the Employment Act
- 5.Employees who were re-employed and/or withdrew from the proceedings excluded from the award
- 6.Respondents jointly and severally to pay the claimants' costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act and Employment and Labour Relations Court Act); matters arose from termination of employment following takeover of the hospitals
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alex Makau & 343 others v St Mary’s Mission Hospital Limited & another [2020] KEELRC 1413 (KLR)", Case Analysis (2020). Cause No. 2 of 2018 (consolidated with Cause No. 3 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1413/eng@2020-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.